Telecoms & Media 2021

Telecoms & Media 2021 Telecoms & Media 2021

Contributing editors Alexander Brown and David Trapp

Subscriptions Claire Bagnall Telecoms & Media [email protected]

Senior business development manager Adam Sargent 2021 [email protected]

Published by Law Business Research Ltd Contributing editors Meridian House, 34-35 Farringdon Street London, EC4A 4HL, UK Alexander Brown and David Trapp

The information provided in this publication Simmons & Simmons LLP is general and may not apply in a specific situation. Legal advice should always be sought before taking any legal action based on the information provided. This information is not intended to create, nor does receipt of it constitute, a lawyer– Lexology Getting The Deal Through is delighted to publish the 22nd edition of Telecoms & Media, client relationship. The publishers and which is available in print and online at www.lexology.com/gtdt. authors accept no responsibility for any Lexology Getting The Deal Through provides international expert analysis in key areas of acts or omissions contained herein. The law, practice and regulation for corporate counsel, cross-border legal practitioners, and company information provided was verified between directors and officers. May and June 2021. Be advised that this is Throughout this edition, and following the unique Lexology Getting The Deal Through format, a developing area. the same key questions are answered by leading practitioners in each of the jurisdictions featured. Lexology Getting The Deal Through titles are published annually in print. Please ensure you © Law Business Research Ltd 2021 are referring to the latest edition or to the online version at www.lexology.com/gtdt. No photocopying without a CLA licence. Every effort has been made to cover all matters of concern to readers. However, specific First published 2000 legal advice should always be sought from experienced local advisers. Twenty-second edition Lexology Getting The Deal Through gratefully acknowledges the efforts of all the contri ISBN 978-1-83862-728-7 butors to this volume, who were chosen for their recognised expertise. We also extend special thanks to the contributing editors, Alexander Brown and David Trapp of Simmons & Simmons LLP, Printed and distributed by for their continued assistance with this volume. Encompass Print Solutions Tel: 0844 2480 112

London June 2021

Reproduced with permission from Law Business Research Ltd This article was first published in July 2021 For further information please contact [email protected] www.lexology.com/gtdt 1 © Law Business Research 2021 Contents

Introduction 3 Philippines 103 Alexander Brown and David Trapp Rose Marie M King-Dominguez, Miguel Franco T Dimayacyac and Simmons & Simmons LLP Leo Francis F Abot SyCip Salazar Hernandez & Gatmaitan Brazil 4 Mauricio Vedovato and Daniela Maria Maria Rosa Nascimento Portugal 109 Huck Otranto Camargo Advogados Nuno Peres Alves and Mara Rupia Lopes Morais Leitão, Galvão Teles, Soares da Silva & Associados China 11 Jingyuan Shi, Ryo Lu and Jenny Liu Russia 118 Simmons & Simmons LLP Anastasia Dergacheva, Ksenia Andreeva, Anastasia Kiseleva, Kamil Sitdikov and Alena Neskoromyuk Egypt 21 Morgan, Lewis & Bockius LLP Mohamed Hashish and Farida Rezk Soliman, Hashish & Partners Singapore 127 Lim Chong Kin European Union 28 Drew & Napier LLC Anne Baudequin, Christopher Götz and Martin Gramsch Simmons & Simmons LLP South Korea 141 Ji Yeon Park, Juho Yoon and Kwang Hyun Ryoo Greece 46 Bae, Kim & Lee LLC Dina Th Kouvelou, Nikos Th Nikolinakos and Alexis N Spyropoulos Nikolinakos & Partners Law Firm Switzerland 149 Mario Strebel and Fabian Koch Ireland 56 CORE Attorneys Ltd Helen Kelly, Simon Shinkwin and Kate McKenna Matheson Taiwan 158 Robert C Lee and Sharon Liu Italy 67 Yangming Partners Alessandra Bianchi Simmons & Simmons LLP Turkey 164 Cigdem Ayozger Ongun, Volkan Akbas and Selin Cetin Japan 76 SRP Legal Atsushi Igarashi, Takuya Yamago, Koshi Okabe and Yukito Nagaoka TMI Associates United Arab Emirates 175 Raza Rizvi Mexico 84 Simmons & Simmons LLP Julián Garza and Paulina Bracamontes B Nader Hayaux & Goebel United Kingdom 182 Alexander Brown and David Trapp Nigeria 93 Simmons & Simmons LLP Chukwuyere E Izuogu, Otome Okolo and Tamuno Atekebo Streamsowers & Köhn United States 199 Colleen Sechrest, Kent D Bressie, Michael Nilsson and Paul Caritj Harris Wiltshire Grannis LLP

2 Telecoms & Media 2021 © Law Business Research 2021 Ireland

Helen Kelly, Simon Shinkwin and Kate McKenna Matheson

COMMUNICATIONS POLICY Authorisation/licensing regime 2 Describe the authorisation or licensing regime. Regulatory and institutional structure 1 Summarise the regulatory framework for the communications The provision of communications services is currently subject to the sector. Do any foreign ownership restrictions apply to regime set out in the Authorisation Regulations, which confers a general communications services? right to provide an electronic communications network (ECN) or an electronic communications service (ECS) (or both) provided certain The Department of Environment, Climate Action and Communications conditions are complied with. No distinction is made as to the type of (DECC) is the relevant governmental department responsible for network or service (eg, mobile, fixed (including public Wi-Fi) or satellite). the telecoms sector and the Department of Tourism, Culture, Arts, The notification procedure for obtaining a general authorisation Gaeltacht, Sport and Media is responsible for the media sector. The can be completed on the ComReg online portal. Operators are free to telecommunications regulator is the Commission for Communications commence operations once a properly and fully completed notification Regulation (ComReg). has been received by ComReg. A notifying party is, however, immedi- Ireland has implemented the EU regulatory framework governing ately subject to the Irish regulatory regime and the conditions set out in the electronic communications sector by way of primary and secondary the general authorisation. Conditions that may be attached to a general legislation. Primary legislation consists of the Communications authorisation are set out in the schedule to the Authorisation Regulations. Regulation Acts 2002–2016. Secondary legislation currently consists of General authorisations are unlimited in duration. No fee is payable regulations that transpose the EUframework, namely: on notification; however, an annual levy (0.2 per cent of relevant turn- • the European Communities (Electronic Communications Networks over) is payable where an operator’s relevant turnover (ie, relating and Services) (Framework) Regulations 2011 (SI 333/2011) (the to the service or network) in Ireland in the relevant financial year is Framework Regulations); €500,000 or more. • the European Communities (Electronic Communications Networks The EU Framework as transposed also governs the granting of and Services) (Access) Regulations 2011 (SI 334/2011) (the Access rights of use for numbers and radio spectrum. ComReg revised the Regulations); numbering conditions of use and application process, amalgamating the • the European Communities (Electronic Communications Networks Numbering Conventions and conditions of use to simplify the rules. and Services) (Authorisation) Regulations 2011 (SI 335/2011) (the Fixed and mobile service providers may also need to obtain a Authorisation Regulations); licence under the Wireless Telegraphy Act 1926 (as amended) in connec- • the European Communities (Electronic Communications Networks tion with the use of wireless telegraphy apparatus. Non-compliance with and Services) (Universal Service and User’s Rights) Regulations the Wireless Telegraphy Act can be prosecuted by ComReg. 2011 (SI 337/2011) (the Universal Service Regulations); and • the European Communities (Electronic Communications Networks Licensing and spectrum regime and Services) (Privacy and Electronic Communications) Regulations There are three mobile network operators in Ireland (Three Ireland, 2011 (SI 336/2011) (the Privacy Regulations). Vodafone Ireland and eir) that have been granted liberalised use licences for spectrum in the 800MHz, 900MHz and 1800MHz bands Following a review of the regulatory framework for electronic (among others). ComReg does not issue licences of indefinite duration communications, the directive establishing the European Electronic or include any implied or express right of renewal, extension or any Communications Code (EECC) entered into force in December 2018. other form of prolongation. It considers that periodic predetermined Ireland missed the deadline for implementation on 21 December 2020 re-release of spectrum is the most appropriate mechanism for the and is expected to implement the EECC into Irish law in 2021. We under- release of spectrum with an ongoing award for the release of 5G spec- stand that the DECC is currently working on finalising Irish legislation trum ongoing (and the subject of a regulatory appeal). to implement the EECC. No foreign ownership restrictions apply to communications service Flexibility in spectrum use at this time, although Ireland is expected to bring in local laws to imple- 3 Do spectrum licences generally specify the permitted use ment the EU wide Foreign Direct Investment Screening Regulation in or is permitted use (fully or partly) unrestricted? Is licensed 2021. The scope of Irish rules not yet clear. spectrum tradable or assignable?

The legal framework controls ComReg’s management of the radio frequency spectrum in Ireland. ComReg issues licences on a technology and service-neutral basis (eg, the ‘liberalised use’ licences issued

56 Telecoms & Media 2021 © Law Business Research 2021 Matheson Ireland following a spectrum auction were issued ‘to keep and have possession Wholesale call origination on the public telephone network of apparatus for wireless telegraphy for terrestrial systems capable of provided at a fixed location providing ECSs’). ComReg considers that spectrum trading is a spec- Eir has been designated with SMP in this market and the remedies trum management tool that, along with other measures, can increase imposed on eir include access, non-discrimination, transparency, the efficient use of spectrum rights. accounting separation, price control and cost accounting. However, ComReg may, through licence conditions or otherwise, provide for proportionate and non-discriminatory restrictions to the Wholesale call termination on individual public telephone types of radio network or wireless access technology used for ECS networks provided at a fixed location where this is necessary (eg, to avoid harmful interference and safe- Seven fixed-service providers (eir, BT Communications Ireland Limited, guard the efficient use of spectrum, etc). Verizon Ireland Limited, Virgin Media Ireland Limited (formerly UPC ComReg has published regulations (the Wireless Telegraphy Communications Ireland Limited), Colt Telecom Ireland Limited, Smart (Transfer of Spectrum Rights of Use) Regulations 2014 (SI 34/2014)) Telecom Holdings Limited and Magnet Networks Limited) have been and guidelines for spectrum trading in the Radio Spectrum Policy designated as having SMP. All operators are subject to price control and Programme (RSPP) bands and is prioritising the setting out of a spec- cost-accounting obligations, with separate price control and accounting trum leasing framework for the RSPP bands a priority action as part obligations applying to eir. of its Strategy Statement. ComReg has imposed an ex-ante regime for reviewing notified spectrum transfers to determine whether such Wholesale local access (provided at a fixed location) transfers would distort competition in the market. Where the transfer Eir has been designated with SMP in this market and the remedies forms part of a wider transaction that is subject to merger control scru- imposed on eir include access, transparency, non-discrimination, tiny by the Irish Competition and Consumer Protection Commission accounting separation, price control and cost-accounting obligations. (CCPC) or by the European Commission, the framework and guidelines will not apply and the appropriate competition body will be the sole Wholesale central access decision-making body. ComReg must be informed of any such merger Eir has been designated with SMP in the regional wholesale central or acquisition at the same time it is notified to the relevant competi- access (WCA) market (but not the urban WCA in which ComReg consid- tion body. The framework and guidelines deal solely with spectrum ered there was enough competition in this market) and the remedies trading; ComReg has indicated that it will deal with spectrum leasing imposed on eir include access, transparency, non-discrimination, and sharing or pooling on a case-by-case basis pending further consid- accounting separation, price control and cost-accounting obligations. eration of the same. ComReg has also published its Framework for Spectrum Leases in Wholesale terminating segments of leased lines Ireland concerning: Eir has been designated with SMP in this market and the remedies • transfer of spectrum regime under the EU Spectrum Transfer imposed on eir include access, transparency, non-discrimination, Framework and implementing Irish legislation; accounting separation, price control and cost-accounting obligations. • the scope of the proposed Spectrum Lease Framework (noting the difference between a spectrum lease or transfer); Mobile communications • the procedural framework for spectrum leasing; and Wholesale voice call termination on individual mobile networks • how ComReg intends to grant and issue a spectrum lease licence. Six mobile network operators were designated as having SMP in this market (Vodafone, O2 Ireland (acquired by Three Ireland), Meteor, Three ComReg published a decision in December 2020 concerning a signifi- Ireland, Tesco Mobile Ireland Limited and Lycamobile Ireland Limited). cant release of spectrum (known as a multi-band spectrum auction) Remedies imposed on these operators include access, non-discrimina- concerning the 700MHz, 1.4GHz, 2.3GHz and 3.6GHz bands. This deci- tion, transparency and price-control obligations. sion outlines the award or auction process for the release of licences ComReg took court action against eir seeking to impose signifi- in these bands and licence conditions for spectrum in these bands cant penalties (about €10 million) over alleged breaches of the Access (eg, roll-out obligations). This decision was appealed by one oper- Regulations by failing to allow access to its network to other telecom ator, Three Ireland, on various grounds and is currently before the providers. In December 2018, eir agreed to pay ComReg €3 million to Irish courts. settle these enforcement proceedings. As part of the settlement deal, eir Due to covid-19, ComReg temporarily released some of this also consented to allow independent observers to monitor its internal spectrum (on a short-term basis) to several operators to deal with divisions between its wholesale and retail structures. the crisis. Non-compliance with requests for information to inform market analysis or to enable ComReg to carry out its statutory function can be Ex-ante regulatory obligations prosecuted by ComReg. 4 Which communications markets and segments are subject to ex-ante regulation? What remedies may be imposed? Structural or functional separation 5 Is there a legal basis for requiring structural or functional The following communications markets are subject to ex-ante separation between an operator’s network and service regulation. activities? Has structural or functional separation been introduced or is it being contemplated? Fixed communications Retail access to the public telephone network at a fixed location Structural separation has not been provided for in the Irish commu- Eir has been designated with significant market power (SMP) in this nications regulatory framework. Structural separation can be imposed market and the remedies imposed on eir include access and price under the Competition Acts 2002–2017 as a remedy in cases entailing control obligations, and an obligation not to unreasonably bundle this an abuse of dominance contrary to section 5 of the Competition Acts service with its other services. 2002–2017.

www.lexology.com/gtdt 57 © Law Business Research 2021 Ireland Matheson

Functional separation powers do exist as an exceptional remedy in time performance only. The submission set out the basis for eir’s force respect of vertically integrated operators with SMP under the regula- majeure claim as being the ‘exceptional weather events in January, tory framework, in circumstances where ComReg concludes that: November and December 2015’. Also, eir submitted an expert report • transparency, non-discrimination, accounting separation, access on the weather conditions associated with the force majeure claim. In and price-control obligations have failed to achieve effective response, ComReg formed the view that it could be considered that force competition; and majeure conditions applied in December 2015 but that the January and • where it has identified important and persisting competition prob- November 2015 weather events did not constitute force majeure events lems or market failures concerning the wholesale provision of within the meaning of the Performance Improvement Programme certain access markets. (PIP3). Eir paid ComReg a penalty of €3,094,000 in December 2016 for its failure to meet the PIP3 agreed USO quality of service performance Following a settlement agreement between eir and ComReg, eir is to targets for 2015. In light of the this, ComReg does not intend to take impose a revised regulatory governance model to separate its retail and further enforcement action against eir for the 2015 period. In March wholesale arms (with independent observers monitoring such a separa- 2017, eir initiated High Court proceedings against ComReg concerning tion for a five-year period). fault repair time obligations imposed on eir. In January 2017, ComReg imposed a 48-hour deadline on eir to repair faults in its telecoms lines Universal service obligations and financing (pursuant to complaints from eir’s competitors). 6 Outline any universal service obligations. How is provision of In June 2017, ComReg applied to the High Court for declarations of these services financed? non-compliance concerning eir’s transparency, non-discrimination and access obligations to provide access to its network to other operators, Eir has been designated as the universal service provider (USP) for seeking a financial penalty of up to €10 million (which would be the telephony services since 2006. largest in the state) concerning these regulatory breaches. In December The following points should be noted concerning the universal 2017, eir launched counter proceedings against the Minister claiming service obligation (USO): the EU telecoms regulations have been wrongly applied in Ireland • eir must satisfy any reasonable request to provide, at a fixed loca- (Access Regulations) and that ComReg has overstepped its remit in tion, connections to the public telephone network and access to a trying to impose civil penalties ‘of the kind it is proposing under existing publicly available telephone service (PATS); law’. In December 2018, eir agreed to pay €3 million to ComReg to settle • the maintenance of the National Directory Database (NDD) is no these enforcement proceedings. As part of the settlement deal, eir also longer a USP obligation; consented to allow independent observers to monitor its internal divi- • an accessibility statement being published to ensure equivalence sions between its wholesale and retail structures. In February 2020, in access and choice for disabled end users is now an obligation of ComReg published an update on the progress of the commitments all undertakings and the provision of specialised terminal equip- under its settlement agreement with eir. The set of commitments, ment for disabled end users is no longer an obligation of the USP when fully implemented, will result in the establishment and opera- or any undertaking as of 1 January 2016; and tion of an enhanced regulatory governance model in eir. Completion • eir must adhere to the principle of maintaining affordability for of the commitments is underpinned by €9 million held in escrow that universal services. is partially released to eir on completion of commitments milestones. ComReg will continue to closely monitor eir’s USO performance In December 2018, ComReg decided that PortingXS (a Dutch company) and publishes quarterly reports on its USO performance. would be responsible for the management and maintenance of the NDD from 1 July 2019, after the expiry of the transition period to allow the Number allocation and portability transfer of functions from eir. As such, PortingXS must ensure that a 7 Describe the number allocation scheme and number comprehensive record exists of all subscribers of publicly available portability regime in your jurisdiction. telephone services in the state, excluding those who have refused to have their details included in the NDD. In August 2015, ComReg specified All operators providing a PATS must provide number portability to certain requirements to be complied with by all undertakings to ensure subscribers at no direct charge. Operators must ensure that the porting equivalence in access and choice for disabled end users (previously, of numbers is carried out within the shortest possible time; numbers only eir as the USP had obligations in respect of a Code of Practice must be activated within one working day and loss of service during concerning the provision of services for people with disabilities). the process may not exceed one working day. ComReg may specify the Eir is subject to legally binding performance targets relating to payment of compensation to subscribers for delays in porting. timescales for connection, fault-rate occurrence and fault repair times. ComReg has confirmed as part of 2013 and 2017 decisions on ComReg issues quarterly reports detailing eir’s performance data machine-to-machine numbering, that number portability is in principle covering its legally binding and non-legally binding performance targets. an entitlement of machine-to-machine number holders. There is currently no USO fund in Ireland. Eir, as the USP, may ComReg is tasked with the management of the National Numbering apply to receive funding for the net cost (if any) of meeting the USO Scheme, including attaching conditions to rights of use for numbers and where ComReg determines there is a net cost and that it represents generally makes allocations and reservations of numbering capacity an unfair burden. There is currently litigation before the Irish courts from the scheme to notified network operators, who each sub-allocate following ComReg’s rejection of eir’s application for funding and a refer- individual numbers to service providers and end users. ComReg’s ence has been made in May 2020 to the Court of Justice of the European tasks include: Union (CJEU) on certain aspects of this case including the fairness of • assigning numbers for existing services; USO burden on eir. • developing frameworks for new and innovative services; On 7 April 2017, ComReg published the outcome of its assess- • ensuring numbers are used following conditions of use set out in ment of eir’s 2015 compliance with the annual performance targets the Numbering Conditions of Use; and set out in Performance Improvement Plan 3. Eir submitted a force • monitoring number utilisation and number changes when required. majeure claim in June 2016 and sought relief in respect of fault repair

58 Telecoms & Media 2021 © Law Business Research 2021 Matheson Ireland

Applications for allocation are made via an application form and determined Vodafone Ireland incorrectly notified its customers of this numbers are granted on a first come, first served basis except when change and imposed a fine of €250,000 and forced Vodafone Ireland to starting allocation from newly allocated number ranges. Allocation is remediate its customers to the tune of €2.5 million. Vodafone Ireland carried out in an open, transparent and non-discriminatory manner. also made binding commitments not to use auto opt-ins in future. ComReg currently does not charge fees to recipients for allocations In 2018, Sky Ireland made a settlement and paid ComReg €117,000 of numbers. concerning an alleged failure to provide customers with a contract on a In December 2018, ComReg introduced measures regulating the durable medium, and breaches of their right to a cooling-off period. As costs of using non-geographic numbers. As of 1 December 2019, the part of this settlement, Sky Ireland agreed to take remedial action to cost of a call to a non-geographic number cannot exceed the cost of prevent any further breaches of these consumer obligations. calling a landline number. Also, the number of non-geographic number In 2018, ComReg brought proceedings against Yourtel concerning ranges available in Ireland will be reduced from five to two by 1 billing customers for a service that it was alleged was never received. January 2022. In February 2019, Yourtel consented to orders before the Commercial Court requiring it to cease its contraventions (and has since been Customer terms and conditions served with restraining orders to prevent it from doing so). Eir was fined 8 Are customer terms and conditions in the communications €23,500 and received 10 separate criminal convictions concerning 10 sector subject to specific rules? counts of incorrect charging of customers for electronic communications services Operators providing a publicly available ECN or ECS must provide In 2019, the District Court heard a prosecution taken by ComReg certain standard contract conditions to consumers in a clear, compre- against Pure Telecom Limited concerning Pure Telecom failing to hensive and easily accessible form (eg, details of price and tariffs and provide full pricing information in its customer contracts. Pure Telecom contract duration, etc). Operators must notify customers one month in pleaded guilty to the counts brought against it and in lieu of a conviction advance of any proposed changes to their terms and conditions and of was required to make a charitable donation of €10,000. ComReg also their right to withdraw without penalty if they do not accept the changes. found Vodafone Ireland was non-compliant because it did not provide Failure to do so may be prosecuted as a criminal matter as failure to customers of its ‘Extra’ Pay as You Go product with their contract on comply is an offence. It is a defence to establish that reasonable steps a durable medium, in contravention with the Consumer Information were taken to comply, or that it was not possible to comply, with the Regulations 2013. ComReg reached a settlement agreement with requirement. ComReg also has the choice of bringing a civil action for Vodafone Ireland that included an undertaking by Vodafone Ireland to non-compliance to the High Court. ComReg has not specified a medium refund 72,774 customers the sum of €416,972. to be used for contract change notifications but provides that notifica- ComReg has brought cases in the Dublin District Court against eir, tions must be presented to customers clearly, unambiguously and Vodafone Ireland and Yourtel in recent years. In June 2018, eir plead transparently, and must include certain minimum information. guilty to 10 offences concerning overcharging customers and paid a ComReg has initiated enforcement actions regarding several total of €23,500. Vodafone Ireland had the Probation Act applied to it on alleged breaches of the rules and most recently issued notices of non- condition that it donates €7,500 to charity and Vodafone Ireland agreed compliance against eir, Vodafone Ireland, Virgin Media Ireland and Sky to contribute to ComReg’s costs of €15,000, and Yourtel pled guilty Ireland in 2018 for failure to notify customers in the prescribed manner to failing to comply with a statutory request for information and was as required under the Universal Service Regulations. required to make a payment towards ComReg’s costs (the Yourtel case ComReg has also issued several requirements concerning bills related to an overcharging complaint). Following a further investigation, and billing mediums. By way of example, consumers must have a choice ComReg, as of February 2019, applied for, and received, a restraining about whether to receive paper bills or alternative billing mediums, and order concerning Yourtel and the overcharging of customers (as Yourtel a paper bill must be provided free of charge where access to online had 89 prior convictions for such an offence). billing is not possible. In November 2018, ComReg announced Formal Dispute Resolution ComReg’s enforcement powers concerning consumer contracts Procedures for End-Users of Electronic Communication Services and derive from both the telecommunications framework (the Universal Networks, introducing structures and timelines for disputes concerning Service Regulations) and the European Union (Consumer Information, any regulations under which ComReg has the power to resolve disputes. Cancellation and Other Rights) Regulations 2013 (SI 484/2013) (the These measures entered into force in September 2019. Formal Dispute Consumer Information Regulations) (following Directive 2011/83/EU Resolution Procedures apply to issues for end users of mobile phone, (Consumer Rights). Consumer contract compliance continues to be a home phone and broadband whose complaints have been unresolved core focus of ComReg, and it has engaged in several enforcement actions for 40 working days or more after lodging a complaint with a service against operators in recent years including the following examples. provider. ComReg will adjudicate the dispute once the end user has In 2016, ComReg imposed a €255,000 fixed penalty notice on Virgin applied for the service. The application procedure is set out in greater Media Ireland for failure to provide 26,046 of its customers with a detail in Annex 2 of ComReg document 18/104. contract in a durable form in contravention of the Consumer Information Regulations 2013. ComReg investigated Virgin Media Ireland as a result Net neutrality of complaints from Virgin customers who claimed the lack of a contract 9 Are there limits on an internet service provider’s freedom to in durable form made it difficult for the affected Virgin Media Ireland control or prioritise the type or source of data that it delivers? customers to recognise and see exactly what they were being charged Are there any other specific regulations or guidelines on net for by the company. This was the first time that ComReg has imposed neutrality? fixed penalty notices (FPNs). ComReg has the power to issue FPNs under the Consumer Protection Act 2007 for breaches of the Consumer The Telecom Single Market Regulation, effective from June 2017, laid Information Regulations 2013. down measures regarding open internet access and net neutrality. In 2017, ComReg initiated an investigation into how Vodafone ComReg has stated that its approach to network neutrality will be Ireland notified its customers of changes to their roaming terms informed by ongoing Body of European Regulators for Electronic and conditions (to include an automatic opt-in provision). ComReg Communications (BEREC) work. www.lexology.com/gtdt 59 © Law Business Research 2021 Ireland Matheson

BEREC published its Guidelines on Net Neutrality to National a cost-orientation obligation. This decision was based on a market Regulatory Authorities (NRAs) on 6 September 2016 providing guid- review carried out by ComReg examining the nature and structure of ance for NRAs to take into account when implementing the rules and the wholesale broadband access markets. assessing specific cases. Following a stakeholder consultation, the government approved ComReg has published its 2019 Report on the Implementation of plans for a new National Broadband Plan that will provide the initial the Net Neutrality Regulations in Ireland (as obliged under Regulation stimulus required to deliver high-speed broadband to every city, town, (EU) 2015/2120 (the TSM Regulation) and outlines how ComReg will: village and individual premises in Ireland. There were several delays in • safeguard open internet access; the design and procurement phases of the NBP owing to negotiations • ensure transparency measures are in place for open with another commercial provider (eir) seeking to provide high-speed internet access; broadband to some of the areas originally designated under the NBP. • supervise and enforce breaches of the TSM Regulation; and Most recently, one bidder, National Broadband Ireland, was selected as • implement the penalties for such breaches. the preferred bidder to deliver the NBP project. The NBP follows several previous state-funded broadband The European Union (Open Internet Access) Regulations 2019 (SI schemes in operation in Ireland: 343/2019) gives enforcement powers to ComReg concerning net • the Metropolitan Area Networks Scheme, which aimed to create neutrality. ComReg may give a direction to an undertaking requiring open-access fibre networks in more than 120 Irish towns for €170 the undertaking to take a measure under article 5(1) of SI 343/2019. million with support from EU structural funds; Where ComReg finds an undertaking has not complied with its direction • the National Broadband Scheme, operated by Three Ireland, or with the obligations under the Net Neutrality Regulations, and that provided mobile broadband to all premises in locations where undertaking has not corrected its behaviour following a notification no services were available or likely to be made available by the from ComReg, ComReg can seek an order from the High Court, which market (this contract expired in August 2014); and can include an order for payment of a financial penalty to ComReg. • the Rural Broadband Scheme, which aimed to provide broadband In December 2019, ComReg issued notifications of non-compliance to parts of Ireland where it was not commercially available and for breaches of net neutrality regulations to seven telecommunica- was designed to meet the needs of the last 1 per cent of the popula- tions companies operating in Ireland. The notifications were issued to tion not covered by any service. internet access service providers regarding transparency breaches in their consumer contracts. With the recent expansion of its powers, Previous governments established the Mobile Phone and Broadband ComReg has taken formal enforcement action against providers who Taskforce to identify immediate solutions to broadband and mobile appeared to have not been providing the required information in their phone coverage deficits and to investigate how better services could customer contracts concerning net neutrality. be provided to consumers before full build and rollout of the network planned under the NBP. The Taskforce published its report in 2017 Platform regulation outlining the issues considered and set out its recommendations and 10 Is there specific legislation or regulation in place, and have actions to alleviate barriers to mobile reception and broadband access, there been any enforcement initiatives relating to digital and the DECC publishes quarterly updates on how the recommenda- platforms? tions are being implemented. While ComReg does not have direct responsibility for the implementation of the NBP, the Mobile Phone and In addition to Part 8 of the Broadcasting Act 2009, which provides for Broadband Taskforce outlines several regulatory actions that can assist digital broadcasting and the associated migration from analogue tele- in the NBP rollout, and ComReg has announced it will undertake such vision, there is limited regulation of digital platforms in Irish law. action areas that support the Taskforce’s objectives. Regulation (EU) 2019/1150 (the Platform to Business Regulations) Separately to the NBP, in June 2018, ComReg decided to legalise came into force in Irish law in July 2020, which provide a framework some mobile phone repeaters in an attempt to boost the coverage of to ensure a transparent and predictable business environment for mobile phone services in respect of indoor reception. This was a key smaller businesses and traders on online platforms and marketplaces. recommendation of the government’s Mobile Phone and Broadband These rules apply to intermediation service providers and search Taskforce. ComReg decided to make certain mobile phone repeaters engine providers and include rules concerning terms and condi- licence-exempt provided certain technical conditions as outlined in the tions, equal treatment of products. These are enforced by the CCPC ComReg decision are met. in Ireland. To the extent that a digital platform provides an ECS or ECN (or Data protection both), it would be subject to the authorisation regime set out in the 12 Is there a specific data protection regime applicable to the Authorisation Regulations, which confers a general right to provide communications sector? ECN or ECS (or both) subject to certain conditions. The communications sector is subject to the general Irish data protec- Next-Generation-Access (NGA) networks tion regime as set out in the Data Protection Act 2018. 11 Are there specific regulatory obligations applicable to The Communications (Retention of Data) Act 2011 sets out a NGA networks? Is there a government financial scheme to specific regime for the retention of certain communications data for, promote basic broadband or NGA broadband penetration? inter alia, the investigation, detection and prosecution of criminal offences. A regime is also in place for the interception of commu- In November 2018, ComReg issued a decision concluding that eir nications by the Irish police force and the Defence Forces. The CJEU continued to hold SMP in the wholesale broadband access market recently found that Directive 2006/24/EC (Data Retention), the basis and, as such, imposed a series of remedies on eir. Such remedies for the Communications (Retention of Data) Act 2011, was invalid. As a are designed to ensure telecoms operators have access to eir’s result of the CJEU decision, no specific legal act at the EU level obliges wholesale services, including the imposition of price control obliga- Ireland to maintain a data retention regime in place. In December 2018, tions concerning the fibre-to-the-cabinet wholesale market through the Irish High Court ruled that the 2011 Act is incompatible with EU and

60 Telecoms & Media 2021 © Law Business Research 2021 Matheson Ireland

European Convention on Human Rights law, and the Supreme Court of general data protection rules to each new way in which personal data recently referred this issue to the European Court of Justice. While the are collected, stored, used and analysed. 2011 Act formally remains law in Ireland, the government has published For instance, current data protection law requires that personal the General Scheme of the Communications (Retention of Data) Bill data is only used for specific purposes, which, naturally, restricts the 2017 designed to replace the 2011 Act. trend in big data to make use of data in previously unknown ways. This The 2011 Privacy Regulations from the EU electronic communi- means that big-data systems should ideally be set up with this purpose cations reform package previously mention also apply pending the limitation in mind, with each new use of personal data generating its own publication of the proposed ePrivacy Regulation. risk profile. There have been discussions around the use of techniques On 25 May 2018, Regulation (EU) 2016/679 (General Data Protection to effectively anonymise or pseudonymise personal data as a solution Regulation) (GDPR) came into force across the European Union and to this, so that the data falls outside the scope of data protection rules, is implemented in Ireland through the Data Protection Act 2018. This although achieving this can sometimes be difficult. follows a two-year implementation period following which the GDPR While this may somewhat limit the ability to commercially exploit will replace existing Directive 95/46/EC (Data Protection). The GDPR big data, the enforcement of data protection law in Ireland is not static aims to harmonise data protection across the EU and will affect how the and is adaptable to each new innovation. The Irish Data Protection communications sector operates. Commissioner takes a pragmatic approach to the treatment of big data and considers meaningful consultation with organisations operating in Cybersecurity this space, including the many leading multinational technology compa- 13 Is there specific legislation or regulation in place concerning nies based in Ireland, as essential to this strategy. cybersecurity or network security in your jurisdiction? The Edward Snowden allegations of large-scale access by US authorities of EU citizens’ personal data have brought the treatment The Criminal Justice (Offences Relating to Information Systems) Act of big data to the forefront of political discussion in Europe, including 2017 was the first piece of national legislation specifically relating to Ireland. Significant changes are likely to come about as a result of the cybercrime and is designed to modernise the Irish framework relating GDPR, implemented in Ireland by the Data Protection Act 2018. to such crimes (previous legislation referred to ‘unlawful use of a Concerning big data, article 22 of the GDPR provides that: computer’ that did not adequately address problems facing current society). This legislation introduced several new offences such as: the data subject shall have the right not to be subject to a decision • accessing an information system without lawful authority; based solely on automated processing, including profiling, which • interfering with an information system without lawful authority to produces legal effects concerning him or her or similarly signifi- intentionally hinder or interrupt its functioning; cantly affects him or her. • interfering with data without lawful authority; • intercepting the transmission of data without lawful authority; and Section 57 of the Data Protection Act 2018 outlines the rights of the • use of a computer, password, code or data for the commission of individual concerning automated decision making, implementing article any of the above offences. 22 of the GDPR. As such, automated processing is only permitted with the express consent of the individual, when necessary for the perfor- The DECC published an updated National Cybersecurity Strategy in mance of a contract or where authorised by EU or EU member state December 2019. Objectives of the strategy include: law. Also, where automated processing is permitted, measures must be • to continue to improve the ability of the state to respond to and in place to protect the individual (eg, the right to present their point of manage cybersecurity incidents; view). Automated processing can apply to sensitive personal data (as • to identify and protect critical national infrastructure by ensuring outlined under the Data Protection Act 2018) based on express consent that essential services have appropriate cybersecurity incident or reasons of substantial public interest. response plans; Many of the big data companies have important locations for their • to improve the resilience and security of public sector IT systems; businesses in Ireland. The Data Protection Commissioner (DPC) is tasked • to invest in educational initiatives to prepare the workforce for with investigating breaches of data regulation by these companies where advanced IT and cybersecurity careers; such breaches occur in this jurisdiction. The DPC opened an inquiry into • to raise awareness of the responsibilities of businesses around Facebook in 2019 on how it stored user login data, and in 2018 the DPC securing their networks, devices and information; and investigated Facebook for non-compliance with its obligation under the • to invest in research and development in cybersecurity in Ireland. GDPR to implement technical and organisational measures to ensure the security and safeguarding of the personal data it processes. In common with similar bodies in other EU member states, the National Cyber Security Centre (NCSC) has also steadily moved towards a Data localisation more proactive approach across a range of areas. The provisions of 15 Are there any laws or regulations that require data to be Directive (EU) 2016/1148 (Network and Information Security) have been stored locally in the jurisdiction? used to develop a quasi-regulatory approach for critical infrastructure providers, an approach that operates in tandem with the NCSC’s There are no laws or regulations that require data to be stored locally in existing and ongoing work. Ireland. The Data Protection Act 2018 not detail specific security measures that a data controller or data processor must have in place, although the Big data Authorisation Regulations 2011 detail some requirements specific to the 14 Is there specific legislation or regulation in place, and have electronic communications services sector. Instead, the Data Protection there been any enforcement initiatives in your jurisdiction, Act 2018 places an obligation on data controllers to ensure that data is addressing the legal challenges raised by big data? processed in a manner that ensures ‘appropriate security of the data’. The measures used by the data controller must ensure that a level of No new data protection legislation has been introduced in Ireland to deal security is provided that is proportionate to the harm that may result specifically with big data, so the debate has focused on the application from destruction, loss, alternation or disclosure of the data. www.lexology.com/gtdt 61 © Law Business Research 2021 Ireland Matheson

Data controllers and data processors are also obliged to ensure sets out the regulatory framework for the media and broadcasting that their staff and ‘other persons at the place of work’ are aware sector in the state. The Commission for Communications Regulation’s of security measures and comply with them. The legal obligation to (ComReg) role in respect of the broadcasting sector is limited to the keep personal data secure applies to every data controller and data issuing of licences under the Wireless Telegraphy Acts, in respect of processor, regardless of size. wireless equipment and assignment of required radio spectrum. The Section 96 of the Data Protection Act 2018 specifies conditions that Broadcasting Act and regulator are due to be modernised and changed must be met before personal data may be transferred to third coun- in legislation expected to be published in 2021 – this will incorporate tries. Organisations that transfer personal data from Ireland to third revised Directive 2010/13/EU (Audiovisual Media Services) into Irish countries (ie, places outside of the European Economic Area) need law (Ireland missed the transposition deadline in September 2020). to ensure that the country in question provides an adequate level of data protection. Some third countries have been approved for this Ownership restrictions purpose by the EU Commission. The adequacy decision of the European 18 Do any foreign ownership restrictions apply to media Commission that underpinned the US Safe Harbour arrangement has services? Is the ownership or control of broadcasters now been invalidated by a decision of the CJEU of 6 October 2015 otherwise restricted? Are there any regulations in relation (Case C-362/14). Consequently, it is no longer lawful to make transfers to the cross-ownership of media companies, including radio, based on the EU–US Safe Harbour framework. This was replaced by television and newspapers? the EU–US Privacy Shield, which imposes stronger obligations on US companies to take measures to protect personal data. Non-EU applicants for broadcasting contracts are required to have their place of residence or registered office within the European Union Key trends and expected changes or as otherwise required by EU law. 16 Summarise the key emerging trends and hot topics in The framework for the ownership and control policy of the BAI is communications regulation in your jurisdiction. set out in the Broadcasting Act, which requires the BAI, in awarding a sound broadcasting contract or television programme service contract In Electronic Communications Strategy Statement 2019–2021, ComReg (or consenting to a change of control of the holder of a broadcasting identified the main trends it considers will both shape the sector and contract), to have regard, inter alia, to the desirability of allowing any pose regulatory challenges over this period. These are: person or group of persons to have control of or substantial interests • the continued evolution of fixed and mobile networks: future elec- in an ‘undue number’ of sound broadcasting services, or an ‘undue tronic communications networks such as, for example, 5G where amount’ of communications media in a specified area. The BAI has standards are still evolving may potentially have differing regu- also issued an ownership and control policy, setting out the regula- latory requirements and it is as yet unclear what the effective tory approach that the BAI will take and the rules that will be enforced regulation of these evolving networks will entail; regarding ownership and control of broadcasting services. The • an increase in connected ‘things’: while the current electronic policy will be used by the BAI to assess applications for broadcasting communications ecosystem focuses primarily on how people contracts and requests for variations to ownership and control struc- connect, the next wave of innovation is anticipated to be concerning tures of contract holders. connected ‘things’, ie, the internet of things; Media mergers must be notified to both the Irish Competition • changing regulatory framework: as part of a broader digital and Consumer Protection Commission (CCPC) and the Minister for strategy in Europe, the regulatory framework for electronic Communications. The CCPC is responsible for carrying out the substan- communications introduced in 2002 (and updated in 2009) is tive competition review to determine whether the merger is likely to under revision; give rise to a substantial lessening of competition. It is the role of • non-uniform end-user experiences: accessibility and connectivity the Minister for Communications to assess ‘whether the result of the have not evolved uniformly, and the experience of end users has media merger will not be contrary to the public interest in protecting not always kept pace with changes in expectations; the plurality of the media in the State’ and this includes a review of • expanding set of related markets relevant to the regulation of ‘diversity of ownership and diversity of content’. The Competition electronic communications: effective regulation requires an under- Acts provide for a set of ‘relevant criteria’ by which the Minister for standing of the complex electronic communications ecosystem, Communications must assess whether the media merger will be likely especially when electronic communications are an enabler of to affect the plurality of the media in the state. In particular, the relevant innovation in related markets; and criteria include considering, inter alia, the undesirability of allowing one • mobile coverage is an issue of national importance as highlighted undertaking to hold significant interests within a sector of the media by its inclusion as a priority in the programme for government, business, the promotion of media plurality and the adequacy of the and the formation of the Mobile Phone and Broadband Taskforce. existing state-funded broadcasters to protect the public interest in a plurality of the media in the state. The Department of Communications, The implementation of the EECC will be the biggest change to the Irish Climate Action and Environment published Media Merger Guidelines telecommunications framework in 2021. in May 2015. In the interests of transparency, the Minister publishes summary details of the rationale for clearing media mergers. MEDIA Licensing requirements Regulatory and institutional structure 19 What are the licensing requirements for broadcasting, 17 Summarise the regulatory framework for the media sector in including the fees payable and the timescale for the your jurisdiction. necessary authorisations?

The broadcasting sector in Ireland is regulated by the Broadcasting The BAI is responsible for the licensing of the national television Act 2009 (as amended) (the Broadcasting Act), which established a service, and content on digital, cable, multimedia displays and satel- content regulator, the Broadcasting Authority of Ireland (BAI) and lite systems. The licensing of content on these systems is an ongoing

62 Telecoms & Media 2021 © Law Business Research 2021 Matheson Ireland process with no timeframe for applications, no competitive licensing which Irish radio and television stations must comply when it comes to process and one-off application fees (these depend on the licence being airing advertising, sponsorship, product placement and other forms of acquired but are typically less than €2,000). commercial communications. The BAI is responsible for the licensing of independent radio The Broadcasting Act does not apply to broadcast services that broadcasting services in Ireland and Part 6 of the Broadcasting Act are provided through the internet or to non-linear services, but this will sets out the mechanism by which the BAI shall undertake the licensing change following the implementation of the revised Audiovisual Media process for commercial, community temporary and institutional Services Directive. radio services. A voluntary self-regulatory code is also in operation and is admin- istered by the Advertising Standards Authority of Ireland (ASAI), which Foreign programmes and local content requirements sets out guidelines for advertising concerning a range of topics including 20 Are there any regulations concerning the broadcasting food, financial services and business products. This code applies to of foreign-produced programmes? Do the rules require a online advertising. On 1 March 2016, the new ASAI Code of Standards for minimum amount of local content? What types of media fall Advertising and Marketing Communications in Ireland came into effect. outside this regime? The updated Code features new sections on e-cigarettes and gambling and revised sections on food (including rules for advertisements The European Communities (Audiovisual Media Services) Regulations addressed to children), health and beauty and environmental claims. 2010 (SI 258/2010) and the European Communities (Audiovisual Media Further, broadcasters should observe relevant national and EU Services) (Amendment) Regulations 2012 (SI 247/2012) (the AVMS rules on advertising of specific types of products and services (eg, Regulations) implement the Audiovisual Media Services Directive. The alcohol, tobacco, health foods, airfares, etc) and consumer protection AVMS Regulations provide that broadcasters, where practicable and by rules on types of advertising practice permitted (eg, consumer informa- appropriate means, must progressively reserve for European works tion requirements, misleading information rules, etc). a majority proportion of their transmission time (excluding the time appointed to news, sporting events, games, advertising and teletext Must-carry obligations services) having regard to their various public responsibilities. 22 Are there regulations specifying a basic package of In 2018, both the European Parliament and Council approved programmes that must be carried by operators’ broadcasting updates to the Audiovisual Media Services Directive, and this will lead to distribution networks? Is there a mechanism for financing the changes to the Irish regime following implementation. Draft legislation costs of such obligations? has been prepared by the Department of Environment, Climate Action and Communications (DECC) (implementing the revised directive and The Broadcasting Act requires ‘appropriate network providers’ to including ‘online harm’ additions) and this is being reviewed through ensure, if requested, the retransmission by or through their appropriate the normal Irish legislative process. One fundamental change being network of each free-to-air television service provided for the time being proposed is the creation of a new regulator, the Media Commission, to by RTÉ, TG4 and TV3’s free-to-air service. An appropriate network is regulate both linear and non-linear broadcasting. defined as an electronic communications network provided by a person, The AVMS Regulations outline that, where practicable and by the ‘appropriate network provider’, that is used for the distribution or appropriate means, broadcasters must progressively reserve at least 10 transmission of broadcasting services to the public. The appropriate per cent of their transmission time (excluding the time applied to news, network provider is not permitted to impose a charge for the above- sports events, games, advertising and teletext services) for European mentioned channels. works created by producers who are independent of broadcasters, or A public service broadcasting charge was suggested by previous reserve 10 per cent of their programming budget for European works governments as a means of funding public broadcasting in light of the that are created by producers who are independent of broadcasters, changing ways that viewers now access public service broadcasting. having regard to its various public responsibilities. However, such plans have been shelved and, the current Minister for The AVMS Regulations require EU member states to ensure that Communications recently announced that there was little chance of this on-demand audiovisual media services also promote European works; being introduced and the government would not introduce the neces- however, quotas for European works are not imposed on non-linear sary enabling legislation. audiovisual services. Regulation of new media content Advertising 23 Is new media content and its delivery regulated differently 21 How is broadcast media advertising regulated? Is online from traditional broadcast media? How? advertising subject to the same regulation? The Internet Services Providers Association of Ireland (ISPAI) has The BAI is currently tasked with the development, review and revision responsibility for supervising the ongoing evolution of self-regulation of of codes and rules concerning advertising standards to be observed the internet in Ireland and has set out guidelines in its Code of Practice by broadcasters, and consideration of and adjudication on complaints and Ethics (the Code) that ISPAI members should take into account concerning material that is broadcast, including advertising. The when operating. Broadcasting Act provides that advertising codes must protect the In its statement of policy, the ISPAI acknowledges that its members interests of the audience and in particular, any advertising relating to must observe their legal obligation to remove illegal content when matters of direct or indirect interest to children must protect the inter- informed by organs of the state or as otherwise required by law. The ests of children and their health. By way of example, the BAI has issued general requirements of the Code issued by the ISPAI include a require- General and Children’s Commercial Communications Codes, including ment on all members to use best endeavours to ensure that services rules to be applied to the promotion of high fat, salt and sugar foods to (excluding third-party content) and promotional material do not contain children. Further rules are set out in the AVMS Regulations concerning anything that is illegal or is likely to mislead by inaccuracy, ambiguity, ‘audiovisual commercial communications’ on on-demand services. The exaggeration, omission or otherwise. They must also ensure that BAI’s General Commercial Communications Code sets out the rules with services and promotional material are not used to promote or facilitate www.lexology.com/gtdt 63 © Law Business Research 2021 Ireland Matheson

any practices that are contrary to Irish law, nor must any services A ‘media business’ means the business (whether all or part of an contain material that incites violence, cruelty, racial hatred or prejudice undertaking’s business) of: or discrimination of any kind. • the publication of newspapers or periodicals consisting substan- Members’ internet service providers are also required to tially of news and comment on current affairs, including the register with www.hotline.ie, which is a notification service to facili- publication of such newspapers or periodicals on the internet; tate the reporting of suspected breaches under the Child Trafficking • transmitting, retransmitting or relaying a broadcasting service; and Pornography Act 1998 (as amended by the Child Trafficking and • providing any programme material consisting substantially of Pornography (Amendment) Act 2004) and the removal of illegal material news and comment on current affairs to a broadcasting service; or from internet websites. • making available on an electronic communications network any The On-Demand Audiovisual Media Services Code of Conduct is an written, audiovisual or photographic material, consisting substan- industry developed code that covers on-demand audiovisual services in tially of news and comment on current affairs, that is under Ireland, addressing topics such as advertising, content standards and the editorial control of the undertaking making such material dispute resolution. available. The regulation of new media content will change following the implementation of the revised Audiovisual Media Services Directive Media mergers are notifiable to both the CCPC and the Minister for and the creation of the new regulator, the Media Commission. This will Communications (regardless of the turnover of the undertakings include expanding existing rules on content and advertising to new concerned) to assess whether the media merger would be contrary to media and on-demand services and video-sharing platforms for the the public interest in protecting the plurality of the media in the state. first time. The Competition Acts provide for a set of ‘relevant criteria’ by which the Minister for Communications must assess whether the media merger Digital switchover will be likely to affect the plurality of the media in the state. In particular, 24 When is the switchover from analogue to digital broadcasting the relevant criteria include considering, inter alia, the undesirability of required or when did it occur? How will radio frequencies allowing one undertaking to hold significant interests within a sector of freed up by the switchover be reallocated? the media business, the promotion of media plurality and the adequacy of the existing state-funded broadcasters to protect the public interest in The digital switchover occurred on 24 October 2012. The 800MHz band a plurality of the media in the state. The BAI may play a role in assessing had been used for analogue terrestrial television services. This spec- media plurality should the transaction be referred to a Phase II process trum was auctioned off (along with the 900MHz and 1,800MHz spectrum) by the Minister for Communications. in autumn 2012 for use in electronic communications services (ECSs). In terms of steps the authorities may require companies to take as a result of a media merger review, the Minister for Communications may Digital formats determine that the media merger be put into effect, determine that the 25 Does regulation restrict how broadcasters can use their media merger be put into effect subject to conditions or determine that spectrum? the media merger may not be put into effect. The DECC’s Media Merger Guidelines guide the media-merger As required by the legislative framework, ComReg has moved towards a process and the DECC now publishes information regarding its process position where it will issue licences on a technology and service-neutral and a summary of each media merger determination in the interests of basis and that new rights of use will issue on a service and technology transparency. There is an ongoing review of the media merger regime neutral basis. For example, ComReg awarded the 3.6GHz spectrum band by the DECC. in 2017, following a lengthy consultation process on a service and tech- In June 2019, the BAI published two new documents: nology neutral basis (ie, holders of the new rights of use may choose • a policy on Media Plurality setting out how the BAI will support to provide any service capable of being delivered using the assigned media plurality in the future. It sets out a definition for media spectrum). For instance, they could distribute television programming plurality, outlines why media plurality is important, details policy content, subject to complying with the relevant technical conditions and objectives and outlines the measures the BAI takes and will take to with any necessary broadcasting content authorisations or they could promote and support media plurality in Ireland; and adopt some other use. • the Ownership and Control Policy, which will be used by the BAI ComReg may, through licence conditions or otherwise, provide for to assess requests for changes to the ownership and control of proportionate and non-discriminatory restrictions to the types of radio existing broadcasting services. The policy provides guidance and network or wireless access technology used for ECSs where this is rules for the BAI when considering the desirability of allowing any necessary (eg, to avoid harmful interference and safeguard the efficient person, or group of persons, to have control of, or substantial inter- use of spectrum). ests in, an undue number of media services in the Irish state.

Media plurality Key trends and expected changes 26 Is there any process for assessing or regulating media 27 Provide a summary of key emerging trends and hot topics in plurality (or a similar concept) in your jurisdiction? May the media regulation in your country. authorities require companies to take any steps as a result of such an assessment? There has been a marked increase in the number of media mergers in Ireland, a trend that can be seen across Europe as traditional media The Competition Acts 2002–2017 provide for special additional rules for outlets need to consolidate to ensure continued survival in a difficult ‘media mergers’ (ie, a merger or acquisition in which two or more of the environment. There has only been one Phase II media merger in the undertakings involved carry on a media business in the state, or that Ireland, which involved the proposed acquisition of the Celtic Media one or more of the undertakings involved carries on a media business Group by Independent News & Media and was referred to the BAI for a in the state and one or more of the undertakings involved carries on a full media-merger examination (the first such media merger in the state). media business elsewhere). No ministerial decision was made by the Minister for Communications

64 Telecoms & Media 2021 © Law Business Research 2021 Matheson Ireland as the parties terminated the transaction during the lengthy process by mutual consent. The primary legislative focus for the Department of Communications will be the implementation of the revised Audiovisual Media Services Directive, which may significantly impact on how non-traditional media companies and broadcasters operate in Ireland through enhanced regulation and potentially introducing a licensing regime for the first time. Concerning traditional broadcasters, it remains to be seen whether Ireland will impose financial contributions (direct investments or levies payable to a fund) on broadcasters and providers who are targeting Helen Kelly their national audiences from other EU member states (the revised [email protected] legislation leaves this decision to each EU member state’s discretion). Simon Shinkwin [email protected] REGULATORY AGENCIES AND COMPETITION LAW Kate McKenna [email protected] Regulatory agencies 28 Which body or bodies regulate the communications and media sectors? Is the communications regulator separate 70 Sir John Rogerson’s Quay from the broadcasting or antitrust regulator? Are there Dublin 2 mechanisms to avoid conflicting jurisdiction? Is there a Ireland Tel: +353 1 232 2000 specific mechanism to ensure the consistent application of Fax: +353 1 232 3333 competition and sectoral regulation? www.matheson.com

The Broadcasting Authority of Ireland (BAI) is currently responsible for the regulation of the broadcasting and audiovisual content sector. The Irish Competition and Consumer Protection Commission public bodies in judicial review proceedings, rather than the merits of (CCPC) is responsible for administering and enforcing the Competition a decision. Acts 2002–2017 across all sectors. Any other procedures available to remedy the matter must usually The Commission for Communications Regulation (ComReg) is be exhausted before bringing judicial review proceedings. responsible for the regulation of the electronic communications sector A decision of the BAI may be challenged by way of judicial review and ComReg has co-competition powers with the CCPC that enable it in the High Court. Also, a decision by the BAI to terminate or suspend to pursue issues arising in the electronic communications sector under a contract made under Part 6 or Part 8 of the Broadcasting Act may be competition law and to take action in respect of anticompetitive agree- appealed by the holder of the contract to the High Court under section ments and abuse of dominance. ComReg and the BAI are each party to 51 of the Broadcasting Act. a cooperation agreement with the CCPC to facilitate cooperation, avoid A decision by the Minister for Communications in respect of a media duplication and ensure consistency between the parties insofar as their merger must be brought in the High Court not later than 40 working activities consist of, or relate to, a competition issue. days from the date of determination. Alternatively, this period may be extended by the High Court if it considers that there is a substantial Appeal procedure reason why the application was not brought in the period and it is just to 29 How can decisions of the regulators be challenged and on grant leave to appeal outside the period. what bases? Competition law developments A decision of ComReg may either be challenged by way of judicial review 30 Describe the main competition law trends and key merger or for decisions made under the Regulatory Framework a merits-based and antitrust decisions in the communications and media appeal under the European Communities (Electronic Communications sectors in your jurisdiction over the past year. Networks and Services) (Framework) Regulations 2011 (SI 333/2011) (the Framework Regulations) in the High Court. Under the Framework There has been a marked increase in the number of media mergers noti- Regulations, the appeal must be brought by a user or undertaking that fied since the 2014 media merger regime was implemented. Thirty-two is affected by the decision and must be lodged within 28 calendar days media mergers have been notified and cleared by the CCPC and the of the date after the user or undertaking has been notified of the deci- Minister (with an additional two reviewed by the Minister following sion. An appeal can be brought based on law or errors of fact. Where the European Commission clearance). appeal is made to the High Court, either party may seek for the matter Some notable media mergers include: to be transferred to the Commercial Court, which is a specialist part of • the 2016 proposed acquisition by Independent News & Media of the High Court that generally hears appeals within six months of the seven regional newspapers that made up the Celtic Media Group. date the appeal is lodged. Lodgment of an appeal against a decision of No ministerial decision was made as the parties terminated the ComReg does not automatically stay that decision unless an application transaction by mutual consent during the extended merger process; for a stay or interim relief has been made. • the 2017 clearance of the 21st Century Fox and Sky merger with no Judicial review proceedings should be launched at the earliest commitments; and opportunity or in any event within three months from the date when • the 2018 clearance of the Trinity Mirror and Northern & Shell grounds for the application first arose (eg, the date of a ComReg deci- merger with binding CCPC commitments. sion (although this can be extended by the court if it considers that there is good and sufficient reason to do so)). The Irish courts have jurisdic- The Irish Times notified the CCPC of its intention to purchase the Irish tion to examine the procedural fairness and lawfulness of decisions of Examiner (the effect of which would reduce the number of reputable www.lexology.com/gtdt 65 © Law Business Research 2021 Ireland Matheson

daily broadsheets from three to two) and received Phase II CCPC clearance on 24 April 2018. In June 2018, the Minister for Communication decided that the proposed merger would not adversely affect the plurality of media in Ireland. The Minister noted that, because of the financial position of the target company, the proposed transaction may in fact preserve the diversity of content and thus protect media plurality in the state.

Coronavirus 31 What emergency legislation, relief programmes and other initiatives specific to your practice area has your state implemented to address the pandemic? Have any existing government programmes, laws or regulations been amended to address these concerns? What best practices are advisable for clients?

Although there has been no covid-19 legislation or regulations implemented in 2020 or 2021 in the media sector, several measures have been implemented in the telecoms sector including: • the temporary release of 5G spectrum (the subject of the upcoming spectrum award) by ComReg to three mobile network operators to allow the use of these bands to relieve the additional pressure on their networks; and • industry wide commitments and agreement between operators and the Minister for Communications concerning the continued provision of services to consumers during the covid-19 crisis. This was signed by all the major consumer-facing telecoms service providers including BT Ireland, eir, Pure Telecom, Sky Ireland, Tesco Mobile Ireland, Three Ireland, Virgin Media Ireland and Vodafone Ireland.

Acquisition Finance Distribution & Agency Investment Treaty Arbitration Public M&A Advertising & Marketing Domains & Domain Names Islamic Finance & Markets Public Procurement Agribusiness Dominance Joint Ventures Public-Private Partnerships Air Transport Drone Regulation Labour & Employment Rail Transport Anti-Corruption Regulation e-Commerce Legal Privilege & Professional Real Estate Anti-Money Laundering Electricity Regulation Secrecy Real Estate M&A Appeals Energy Disputes Licensing Renewable Energy Arbitration Enforcement of Foreign Life Sciences Restructuring & Insolvency Art Law Judgments Litigation Funding Right of Publicity Asset Recovery Environment & Climate Loans & Secured Financing Risk & Compliance Management Automotive Regulation Luxury & Fashion Securities Finance Telecoms & Media 2021 Aviation Finance & Leasing Equity Derivatives M&A Litigation Securities Litigation Aviation Liability Executive Compensation & Mediation Shareholder Activism & Banking Regulation Employee Benefits Merger Control Engagement Business & Human Rights Financial Services Compliance Mining Ship Finance Cartel Regulation Financial Services Litigation Oil Regulation Shipbuilding Class Actions Fintech Partnerships Shipping Cloud Computing Foreign Investment Review Patents Sovereign Immunity Commercial Contracts Franchise Pensions & Retirement Plans Sports Law Competition Compliance Fund Management Pharma & Medical Device State Aid Complex Commercial Litigation Gaming Regulation Structured Finance & Construction Gas Regulation Pharmaceutical Antitrust Securitisation Copyright Government Investigations Ports & Terminals Tax Controversy Corporate Governance Government Relations Private Antitrust Litigation Tax on Inbound Investment Corporate Immigration Healthcare Enforcement & Private Banking & Wealth Technology M&A Corporate Reorganisations Litigation Management Telecoms & Media Cybersecurity Healthcare M&A Private Client Trade & Customs Data Protection & Privacy High-Yield Debt Private Equity Trademarks Debt Capital Markets Initial Public Offerings Private M&A Transfer Pricing Defence & Security Insurance & Reinsurance Product Liability Vertical Agreements Procurement Insurance Litigation Product Recall Dispute Resolution Intellectual Property & Antitrust Project Finance

Also available digitally lexology.com/gtdt

ISBN 978-1-83862-728-7